Of those present, Schoenfeld was the most vindictive toward WikiLeaks (which is not surprising since the Hudson Institute is a right wing think tank). Schoenfeld and Wainstein, a Homeland Security advisor under Bush, were the only two who seemed to be prepared to make a case for prosecuting members of the press. Schoenfeld provided a historical fun fact about the Chicago Tribune during World War II that became a central focus of the hearing:
"In 1942, in the immediate aftermath of the Battle of Midway, the Chicago Tribune published a story strongly suggesting that the decisive American naval victory at Midway owed to the fact that the United States had been successfully reading Japanese codes. Shocked officials in the War Department in Washington sought to throw the book at Col. McCormick and a grand jury was empanelled to hear evidence and bring charges. When it turned out that the Japanese had not changed their codes in reaction to the news story, the War Department asked the Justice Department to drop the proceedings lest further attention be called to a story the Japanese had seemingly ignored.
But there can be no blinking the gravity of that breach. If the United States, thanks to the Chicago Tribune, had lost its window into Japanese military communications, the war in the Pacific would still have ended in certain Japanese defeat. That outcome was all but assured by the atomic bomb. But three years were to elapse before the atomic bomb was ready for use. In the interim, without the priceless advantage of knowing Tokyo's every next move in advance, thousands--tens of thousands--of American soldiers and sailors would have needlessly died."
Schoenfeld contended WikiLeaks' release of documents were far more similar to this instance with the Chicago Tribune than the Pentagon Papers. He added that because the secrets WikiLeaks is revealing involve "ongoing diplomatic, military and intelligence programs" and are not "historical" they are much more damaging to the U.S. than the Pentagon Papers.
Blanton tried to correct Mr. Schoenfeld, who was delivering talking points the media had been propagating about WikiLeaks being irresponsible. He explained that a "great deal of redaction is going on here, on a daily
basis" and "extensive descriptions" of the process have appeared in "editors' notes by all
the media outlets who are publishing stories on this matter." Media outlets have "testified to the fact that WikiLeaks is following their lead after their
reporters engage in exactly that discussion with the government about what the
risk is, which is exactly the discussion the Chicago Tribune did not have in
it's case and was its own journalistic failure."
"They're Doing Some Very Smart Things to Eliminate Distinctions Government is Trying to Draw"
Wainstein acknowledged that there were prime First Amendment concerns that could be raised by prosecuting WikiLeaks. He cited the concern as "reason why the Justice
Department has internal procedures for all media-related cases that
impose strict limitations on the investigation and prosecution of press
activities -- limitations that go well beyond what the law requires;
and it is the reason why -- despite the media's publication of leaked
classified information on an almost daily basis -- the government has
never chosen to prosecute a media organization for espionage."
But, Wainstein proceeded to detail how a efforts to prosecute could be waged by making a distinction that media is "generally dedicated to the dissemination of newsworthy information to educate the public" while "WikiLeaks focuses first and foremost on obtaining and disclosing official secrets." The note suggested that press is allowed to disclose secrets to educate the public, but, if that was all they were dedicated to doing, they might not be worthy of a media organization designation. (Sound screwy? Yeah.)
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